STATE ex rel. RISHER v. DISTRICT COURT OF SEMINOLE COUNTY

STATE ex rel. RISHER v. DISTRICT COURT OF SEMINOLE COUNTY
1933 OK 680
27 P.2d 826
167 Okla. 43
Case Number: 25206
Decided: 12/19/1933
Supreme Court of Oklahoma

STATE ex rel. RISHER
v.
DISTRICT COURT OF SEMINOLE COUNTY et al.

Syllabus

¶0 Prohibition--Issuance of Writ in Accordance with Admission of Respondent.
Where application for writ of prohibition is made to this court as an original proceeding and the respondent in this court files an admission confessing the right to the writ, this court will examine the proceeding to determine if the application reasonably supports the writ, and where it does so, will grant the same in accordance with the prayer in the application therefor.

Original application for writ of prohibition by the State on relation of John N. Risher against District Court of Seminole County and George C. Crump, Judge. Writ granted.

R. J. Roberts, for petitioner.
Wells, Nichols & Wells, for respondent.

OPINION: PER CURIAM.

¶1 This is an application for a writ of prohibition by John N. Risher against George C. Crump, judge of the district court of Seminole county.

¶2 It appears that on October 20, 1932, the Oil Well Supply Company filed an action in replevin in the district court of Pottawatomie county against John N. Risher and N. Bert Smith seeking recovery of certain oil well drilling tools and equipment upon which they held a chattel mortgage. Said cause was numbered 14808. Risher executed a redelivery bond and retained possession of the property. On November 2, 1933, a judgment was entered for plaintiff for possession of the property which was not appealed from and became final between the parties.

¶3 On October 22, 1932, and during the pendency of the above action, an action was filed by A. L. Lotspeich, J.

¶4 N. Shanks, and L. D. Team against the Fixico Oil Company, Smith Drilling & Producing Company, and Horace Smith, numbered 18035 in the district court of Seminole county, in which plaintiffs claimed a lien upon the property involved in cause No. 14808 in the district court of Pottawatomie county by reason of furnishing labor and material to defendants upon a specific contract. On October 22, 1932, a temporary restraining order was issued in cause No. 18035, enjoining and restraining defendants from removing or destroying the property therein involved. The restraining order was later modified to exclude the property included in the replevin order in cause No. 14808.

¶5 On December 15, 1932, W. G. Baker filed an action in the district court of Seminole county against John Risher, Smith Drilling & Producing Company, and Robert Burns, seeking foreclosure of a lien upon the property above described and involved in the above actions for indebtedness for drilling an oil well.

¶6 On January 10, 1933, causes Nos. 18035 and 18117 in the district court of Seminole county were consolidated.

¶7 In said consolidated cause John N. Risher and the Fixico Oil Company filed a response calling attention of the court to the pendency of cause No. 14808 in the district court of Pottawatomie county, and alleged that the property upon which plaintiffs sought to foreclose their liens was in custodia legis, and asked that said restraining order be vacated.

¶8 On July 27, 1933, a receiver was appointed to take charge of the property, and later the court entered an order permitting the receiver to lease the property involved to the Mid-Continent Crude Oil Purchasing Company.

¶9 On November 4, 1933, John N. Risher filed a motion to discharge the receiver and quash the restraining orders issued in the consolidated causes Nos. 18035 and 18,-117, for the reason that the property involved was in the custody of the district court of Pottawatomie county, and the district court of Seminole county was without jurisdiction to appoint a receiver to take charge of the property or to enter an order restraining the parties from moving or exercising dominion over the property. The motion was overruled by the court.

¶10 Petitioner prays for a writ to be issued to defendant Crump, as judge of the district court of Seminole county, commanding him to refrain from further proceeding in consolidated causes Nos. 18035 and 18117, and to permit plaintiff herein to take possession of said tools and equipment in compliance with the judgment of the district court of Pottawatomie county.